Robert Reich: Clarence Thomas and the Politicization of the Supreme Court

Justice Clarence Thomas, in a speech last weekend to the Federalist Society, accused his critics of “undermining” the legitimacy of the Supreme Court — politicizing it in ways that jeopardize the Court’s credibility in the eyes of the public. He warned:

You are going to be, unfortunately, the recipients of the fallout from that — that there’s going to be a day when you need those institutions to be credible and to be fully functioning to protect your liberties. That could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.

Odd coming from Clarence Thomas — who has done more to politicize the Court than anyone in recent years, with the possible exception of his brother on the bench Antonin Scalia.

Last year, you’ll recall, the votes of Thomas and Scalia swung the Court in the direction of the right-wing group Citizens United — plaintiffs in the case that struck down federal laws limiting corporate campaign contributions.

Before the decision, Thomas and Scalia also participated in a political retreat hosted by Tea Party billionaire financiers Charles and David Koch, driving forces behind loosening restrictions on big money in politics.

Back in 1991 when Thomas was nominated to the Supreme Court, Citizens United spent $100,000 to support his nomination. The in-kind contribution presumably should have been disclosed by Thomas.

At the very least you’d think that, given his connections with Citizens United and with the Koch brothers, Thomas would have recused himself from the Citizens United decision in order to avoid the appearance of a conflict of interest. He would have recused himself, that is, if he were as concerned about the legitimacy of the Supreme Court as he says.

Thomas has also failed to disclose financial information about his wife’s employment. Virginia Thomas is the founder of Liberty Central, a Tea Party organization now receiving unlimited corporate contributions due to Citizens United. Among the things she’s lobbying for are the repeal of what she terms the “unconstitutional” healthcare legislation.

Because of his wife’s direct involvement, seventy-four House Democrats have sent a letter to Justice Thomas asking him to recuse himself from any case questioning the constitutionality of the legislation. “Your spouse is advertising herself as a lobbyist who has ‘experience and connections’ and appeals to clients who want a particular decision,” the legislators wrote. “They want to overturn health-care reform.”

Scalia isn’t much better. In December he met in a closed-door session with Michele Bachmann’s Tea Party Caucus, a group formed in large part to fight for the repeal of health-care reform. Can you imagine the firestorm if Justice Sonia Sotomayor met in secret with the House Progressive Caucus?

Even Thomas’s choice last weekend of the Federalist Society as a venue to air his grievances about his critics reveals his affinity for partisan politics. The Federalist Society, after all, is a well-established network of conservative lawyers and politicians dedicated to rolling back regulations. It’s financed in part by the Koch brothers.

Look, I’m not so naive as to believe that Supreme Court justices don’t have political views and values. The point is precisely the one Thomas himself made last weekend: If the Court is perceived by the public to be politically partisan, it loses the public’s confidence. That confidence, as described by Justice Stephen Breyer in his impassioned dissent in Bush v. Gore (a case like Citizens United that could be understood only in partisan political terms) “is a public treasure. It has been built slowly over many years” and is a “vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself.”

When Clarence Thomas and Antonin Scalia go to secret political strategy sessions with Republican partisans they jeopardize everything the Supreme Court stands for. They make a mockery of the common sense of Americans.

If it wants to maintain its legitimacy the Court has to appeal to that common sense rather than to partisan politics. As Justice Lewis Powell’s wrote in his dissent to Citizens United:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American

people, who have recognized a need to prevent corporations from undermining self

government since the founding, and who have fought against the distinctive corrupting

potential of corporate electioneering since the days of Theodore Roosevelt. It is a

strange time to repudiate that common sense. While American democracy is imperfect,

few outside the majority of this Court would have thought its flaws included a dearth of

corporate money in politics.

Citizens United is an illegitimate decision, arrived at by at least two justices who should never have participated in it.

Robert B. Reich is Professor of Public Policy at the Goldman School of Public Policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He has written eleven books (including his most recent, Supercapitalism, which is now out in paperback). Mr. Reich is co-founding editor of The American Prospect magazine. His weekly commentaries on public radio’s Marketplace are heard by nearly five million people.